DSP CONCEPTS

PROFESSIONAL SERVICES AGREEMENT

Last modified 05.31.2022

This DSP Concepts Professional Services Agreement (“Professional Services Agreement”) together with the additional terms and conditions of a statement of work, services schedule or other services form referencing and incorporating this Professional Services Agreement (“Statement of Work”) will become, upon execution of the Statement of Work by DSP Concepts, Inc. (“DSP Concepts”) and the party purchasing the Services under the Statement of Work (“Client”), a binding written agreement between DSP Concepts and Client (collectively the “Agreement”) with respect to the subject matter of the Statement of Work. The Statement of Work is subject to and governed by the provisions of this Professional Services Agreement. By executing the Statement of Work, Client represents and warrants that it has unconditionally consented to be bound by the terms and conditions of this Professional Services Agreement, and the person executing the Statement of Work represents and warrants that it has the authority to enter into the Agreement on behalf of Client. In the event of any inconsistency between the terms and conditions of the Statement of Work and the terms and conditions of this Professional Services Agreement, the terms and conditions of the Statement of Work will prevail, except to the extent that the Statement of Work may expressly state that specific provisions of this Professional Services Agreement have been overridden or otherwise modified by the Order. DSP Concepts and Client are also referred to in this Professional Services Agreement each individually as a “Party”, and together as the “Parties”. Capitalized terms not defined in this Professional Services Agreement will have the meanings ascribed to them in the Statement of Work.

 

 

1.     DEFINITIONS

“Audio Weaver Core” means DSP Concepts’ Audio Weaver Core audio processing engine consisting of runtime libraries for targeted processors, cores and platforms, and optimized processing modules, including without limitation, all modules created or developed by DSP Concepts in its performance of the Professional Services.

“BSP Code” means DSP Concepts’ board support package package software code that executes on an embedded processor and shows how Audio Weaver Core runtime libraries are used with a development board. 

“Confidential Information” means any information disclosed by a Party (“Disclosing Party”) orally, electronically or in written form to the other Party (“Receiving Party”) that: (a) is identified in the Agreement as Confidential Information; (b) is marked or otherwise identified by the Disclosing Party as the confidential or proprietary information of the Disclosing Party; or (c) the Receiving Party knows, or would reasonably know given the nature of such information and the circumstances of its disclosure, to be the confidential or proprietary information of the Disclosing Party. As between DSP Concepts and Client, the Licensed Technology and Materials, including without limitation the technologies, software, code, technical information, ideas, know how, documentation, processes, algorithms and trade secrets embodied therein, are the Confidential Information of DSP Concepts.

“Customizations” means any custom tunings to the audio functions of Audio Weaver Core which may be performed by DSP Concepts as part of the Professional Services as may be expressly set forth in a Statement of Work, and are specifically identified in the Statement of Work as .awb or .awd files and delivered to Licensee in such format.

“DSP Concepts Background Technology” means any software, algorithms, diagrams, documentation, information and all other technology and materials created, developed, owned or controlled by DSP Concepts prior to the effective date of the Agreement, or created, developed or acquired after the effective date and outside the scope of the Agreement, including without limitation all improvements, modifications or enhancements thereto.

“DSP Concepts Examples” means DSP Concepts’ examples and sample implementations provided as block diagrams for use with Audio Weaver Core, including without limitation any DSP Concepts pre-developed examples and sample implementations and examples and sample implementations created or developed by DSP Concepts in its performance of the Professional Services.

“DSP Concepts Software Solutions” means DSP Concepts’ software solutions which are pre-compiled runtime configurations of the audio functions used with Audio Weaver Core, including without limitation any DSP Concepts pre-developed solutions and solutions developed in its performance of the Professional Services.

“Intellectual Property Rights” means all patents, copyrights, rights in mask works, industrial design rights, utility model rights, trademark rights, trade secret rights, and other intellectual property or proprietary rights of any kind, recognized in any jurisdiction, whether now or hereafter existing.

 “Licensed Technology and Materials” means: (a) Audio Weaver Core, BSP Code, DSP Concepts Examples and DSP Concepts Software Solutions; (b) all other DSP Concepts Background Technology which may be set forth in the Statement of Work; and (c) all deliverables, software, technologies, materials and all other work product specified in the Statement of Work or otherwise developed, created or resulting from the Professional Services, excluding Customizations.

“Professional Services” means the services provided by DSP Concepts to Client as set forth in the Statement of Work.

 

2.     PROFESSIONAL SERVICES

Subject to Client’s payment of the applicable Fees, DSP Concepts shall perform the Professional Services for Client as set forth in the Statement of Work.

 

3.     FEES; PAYMENT

In consideration for the Professional Services performed by DSP Concepts under the Agreement, Client shall pay to DSP Concepts all Fees in the amounts set forth in the Statement of Work. DSP Concepts shall invoice Client for such Fees as set forth in the Statement of Work. Client shall pay in full all amounts due and owing as stated in an invoice within thirty (30) days of receipt of invoice. All payments shall be made in U.S. dollars and in the manner specified in the Statement of Work. Except as may be expressly stated otherwise in the Agreement, all Fees are non-refundable and non-returnable. If Client fails to make full and timely payment of any amounts due, DSP Concepts reserves the right to suspend or terminate DSP Concepts’ performance of the Professional Services. Client agrees to pay finance charges on past due payments from the date such payments were due until paid at the rate of one and one half percent (1.5%) per month or the highest amount permitted by applicable law, whichever is lower. Client agrees to pay DSP Concepts all collection costs, attorney fees, court costs, and all other fees associated with collection of past due amounts.

 

4.     TAXES

All Fees amounts stated or referred to in the Agreement are exclusive of Taxes. Client shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any Taxes based on DSP Concepts’ net income. If DSP Concepts has the legal obligation to pay or collect Taxes for which Client is responsible, the appropriate amount shall be invoiced to and paid by Client, unless Client provides DSP Concepts with a valid tax exemption certificate authorized by the appropriate taxing authority. All payments due and owing to DSP Concepts shall be increased so that amounts received by DSP Concepts, after provisions for applicable Taxes and all applicable Taxes on such increase, will be equal to the amounts required as if no Taxes were due on such payments.

 

5.     OWNERSHIP; LICENSE

         (a)     DSP Concepts or its licensors will own all rights, title and interest, including without limitation all Intellectual Property Rights, in and to the Licensed Technology and Materials. . Licensee will have no rights, title or interest of any kind in or to the Licensed Technology and Materials, except for the limited express license rights granted in the Agreement. No licenses to the Licensed Technology and Materials are granted by implication, estoppel or otherwise. All rights not expressly granted by DSP Concepts to Licensee in the Licensed Technology and Materials are reserved by DSP Concepts

         (b)     If the Statement of Work expressly states that the Professional Services are performed in connection with a development license agreement entered into by the Parties (as identified in the Statement of Work) (“Development License Agreement”), then the Agreement does not grant or assign to Client any rights, licenses, title or interest of any kind in or to the Licensed Technology and Materials, whether expressly or by implication, estoppel or otherwise. All Licensed Technology and Materials will be licensed to Client under the terms and conditions of the Development License Agreement.

         (c)     If no Development License Agreement is referenced in the Statement of Work, then, subject to Client's compliance with the terms and conditions of the Agreement (including without limitation payment of the Fees), DSP Concepts grants to Client a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable license for Client (including Client’s contractors performing such services for Client) to copy and use the Licensed Technology and Materials solely for the purpose of evaluating and testing the Licensed Technology and Materials in connection with the possible development by Client of products that incorporate, or are used in operation with, Audio Weaver Core, BSP Code, DSP Concepts Examples or DSP Concepts Software Solutions. Such products shall include their own primary functionality which shall be substantially different from, and not competitive with, the Licensed Technology.

         (d)     Client shall not, and shall not permit any third party to: (a) disassemble, decompile, reverse engineer or otherwise attempt to learn, extract or gain access to the method of operation or the source code of any Licensed Technology and Materials; (b) distribute, sublicense or otherwise make available the Licensed Technology and Materials to any third parties (except to Client's contractors as expressly permitted under the Agreement); (c) copy (except as expressly permitted under the Agreement), modify, or create derivative works of the Licensed Technology and Materials; (d) resell, rent, lease, host, or provide access to or use of on a time-share or service bureau basis, or otherwise transmit, the Licensed Technology and Materials; (e) delete or in any manner alter the copyright, trademark or any other proprietary rights or confidentiality notices appearing in or on the Licensed Technology and Materials.

         (e)     Subject to Client’s payment of all applicable Fees, Client will own all rights, title and interest, including without limitation all Intellectual Property Rights, in or to any Customizations which may be expressly set forth in a Statement of Work. For clarity, DSP Concepts will retain all rights, title and interest, including without limitation all Intellectual Property Rights, which DSP Concepts owns in or to the Licensed Technology and Materials which are used in operation with, or are incorporated, embedded or otherwise integrated into, the Customizations.

 

6.     CONFIDENTIAL INFORMATION

         (a)     The Receiving Party shall not use the Disclosing Party’s Confidential Information except to the extent necessary for the performance of the Agreement. The Receiving Party shall not disclose the Disclosing Party’s Confidential Information to any third party except to those of its employees and contractors who need to know such Confidential Information for the purpose of performing the Agreement, provided that each employee and contractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective of the Confidential Information as those set forth herein. The Receiving Party shall use the same efforts to maintain the confidentiality of the Disclosing Party’s Confidential Information that the Receiving Party uses to maintain the confidentiality of its own confidential or proprietary information of a similar nature, but in no event shall the Receiving Party use less than reasonable efforts to protect the Disclosing Party’s Confidential Information in the Receiving Party’s possession or control.

         (b)     The Receiving Party will not be obligated under this Section 5 with respect to any information that: (i) is or becomes generally and lawfully known to the public through no fault of, or breach of the Agreement by, the Receiving Party; (ii) is rightfully known by the Receiving Party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (iv) the Receiving Party rightfully obtains from a third party without restriction on use or disclosure. With respect to a Disclosing Party’s Confidential Information that the Receiving Party is required to disclose in response to a valid court order or subpoena, the Receiving Party shall be free to disclose such information solely for such purposes, provided that the Receiving Party promptly notifies the Disclosing Party of such required disclosure sufficiently in advance of the disclosure so that the Disclosing Party has the opportunity to protect its Confidential Information with a confidentiality order or treatment prior to the disclosure.

         (c)     Neither Party may disclose the terms and conditions of the Agreement except to such Party’s advisors, accountants, attorneys, auditors, investors, and prospective investors who have a reasonable need to know such information in order to provide their services to the Party or to explore their potential investment in the Party. However, such third parties shall not use such information in any manner that will cause the Party to breach or violate any term or provision of the Agreement, and, before such parties may access such information, the Party shall ensure that each such third party has either: (i) executed a binding agreement to keep such information confidential, or (ii) is subjected to a legal or professional obligation to maintain the confidentiality of such information.

 

7.     WARRANTIES

DSP Concepts warrants that the Professional Services will be performed in a professional manner consistent with generally accepted industry standards reasonably applicable to the provision of such services. In the event of a breach by DSP Concepts of the foregoing express warranty, DSP Concepts shall use its commercially reasonable efforts to reperform the deficient Professional Services. In the event that DSP Concepts, despite using commercially reasonable efforts, is unable to reperform the Professional Services, DSP Concepts shall refund to Client the applicable Fees paid for the deficient Professional Services. THE FOREGOING REMEDIES WILL BE CLIENT'S SOLE REMEDY AND DSP CONCEPTS' SOLE LIABILITY IN THE EVENT OF A BREACH OF ANY OF THE WARRANTIES SET FORTH IN SECTION 6.

 

8.     DISCLAIMER

EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6, THE PROFESSIONAL SERVICES (INCLUDING WITHOUT LIMITATION ANY LICENSED TECHNOLOGY AND MATERIALS AND CUSTOMIZATIONS) ARE PROVIDED TO CLIENT "AS IS" WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN SECTION 6, DSP CONCEPTS DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROFESSIONAL SERVICES, LICENSED TECHNOLOGY AND MATERIALS AND CUSTOMIZATIONS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE AND ANY WARRANTIES ARISING OUT OF A COURSE OF DEALING OR USUAGE OF TRADE.

 

9.     LIMITATION OF LIABILITY

         (a)   TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO SECTION 8(c), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THE AGREEMENT, OR THE PROFESSIONAL SERVICES, LICENSED TECHNOLOGY AND MATERIALS OR CUSTOMIZATIONS, FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, SUCH DAMAGES OR LOSSES ARISING FRM (I) BUSINESS INTERRUPTION, (II) LOSS OF PROFIT, REVENUES OR GOODWILL, (III) LOSS OF DATA, PROGRAMMING OR CONTENT, (IV) FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, (V) SUBSTITUTE PROCUREMENT, OR (VI) DAMAGE TO HARDWARE OR EQUIPMENT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR IF SUCH DAMAGES OR LOSSES ARE FORESEEABLE. THE FOREGOING EXCLUSIONS OF LIABILITY WILL APPLY WHETHER SUCH LIABILITY ARISES UNDER BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE AND STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY.

         (b)   TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO SECTION 8(c), IN NO EVENT WILL DSP CONCEPTS' MAXIMUM TOTAL LIABILITY TO CLIENT OR ANY THIRD PARTY FOR DAMAGES (DIRECT OR OTHERWISE), LOSSES, CLAIM, COSTS OR LIABILITIES OF ANY KIND, WHETHER IN CONNECTION WITH THE AGREEMENT OR THE PROFESSIONAL SERVICES, LICENSED TECHNOLOGY AND MATERIALS OR CUSTOMIZATION, EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO DSP CONCEPTS FOR THE PROFESSIONAL SERVICES SET FOR IN THE STATEMENT OF WORK. THE FOREGOING LIMITATIONS OF LIABILITY WILL APPLY WHETHER SUCH LIABILITY ARISES UNDER BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY..

         (c)  THE PROVISIONS OF SECTION 8(a) AND SECTION 8(b) WILL NOT APPLY TO ANY LIABILITY ARISING OUT OF: (I) A PARTY’S FRAUD OR INTENTIONAL MISCONDUCT; (II) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THE AGREEMENT; OR (III) CLIENT’S ACCESS OR USE OF THE LICENSED TECHNOLOGY AND MATERIALS IN VIOLATION OF, OR OTHER THAN AS EXPRESSLY AUTHORIZED UNDER, THE AGREEMENT.

 

10.    TERM

The Agreement will commence as of the Order Effective Date and shall remain in full force and effect until the completion of the Professional Services, unless terminated earlier as expressly permitted hereunder. 

 

11.    TERMINATION

       (a)     Either Party may terminate the Agreement effective upon written notice to the other Party if the other Party materially breaches the Agreement and, with respect to a material breach which is capable of being cured, fails to correct such breach within thirty (30) days following written notice specifying the breach, except that the cure period for Client’s default with respect to payment will be five (5) business days.

       (b)     Either Party may terminate the Agreement effective upon written notice to the other Party if: (i) a receiver is appointed for the other Party or its property; (ii) the other Party makes a general assignment for the benefit of its creditors; (ii) the other Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor's relief law, which proceedings are not dismissed within sixty (60) days; or (iii) the other Party becomes insolvent or is liquidating, dissolving or ceasing normal business operations.

 

12.    EFFECT OF TERMINATION

Upon termination or expiration of the Agreement, each Party shall destroy all Confidential Information of the other Party in its possession, and upon such other Party’s request, shall certify in writing that it has complied with the foregoing. The provisions of Sections 2, 3, 4, 5, 6, 8, 11 and 12 of this Professional Services Agreement will survive termination or expiration of the Agreement.

 

13.    GENERAL TERMS

         (a)     During the period beginning on the date hereof and ending one (1) year after the termination of the Agreement, Client shall not, without DSP Concepts’ prior written approval, solicit for employment any of DSP Concepts’ present or future employees or independent contractors. If Client solicits for employment, and subsequently employs, a current or future employee or independent contractor in contravention of the immediately preceding sentence, then Client shall immediately pay to DSP Concepts, as liquidated damages and not as a penalty, an amount equal to 100% of such employee’s or contractor’s annual salary or billable revenue at the time the employee or contractor leaves the employ or engagement of DSP Concepts

         (b)     Except for all payment obligations, neither Party will be liable to the other Party for delay or failure to perform any of its obligations under circumstances where such delay or failure is due to any reasons beyond a Party’s reasonable control, including without limitation Acts of God, fire, flood, earthquake, power failure, sabotage, failure to obtain export licenses, unavailability of the internet, pandemic, civil strife, riot, strike, war and any military or other government action

         (c)     The Parties to the Agreement are independent contractors and the Agreement does not establish any relationship of partnership, joint venture or agency between them. Neither Party will have, and shall not represent to have, the power to bind the other Party or incur obligations on the other Party’s behalf, or to assume or create any express or implied obligation on behalf of the other Party.

         (d)     Client shall not assign, transfer or delegate the Agreement to any third party without the prior written consent of DSP Concepts. Any purported assignment, transfer or delegation by Client to a third party without DSP Concepts’ required prior written consent will be void and of no effect. The Agreement will be binding upon each Party’s successors and assigns.

         (e)     Licensee shall comply with all applicable laws, rules and regulations in the performance of the Agreement, including without limitation all relevant export laws, rules and regulations of the United States and any other applicable jurisdiction to ensure that the Licensed Technology is not: (i) exported or re-exported directly or indirectly in violation of such export laws, rules or regulations; or (ii) used for any purposes prohibited by such export laws, rules or regulations

         (f)     The Agreement will be governed by the laws of the State of California without regard to or application of its conflict of laws rules or principles. Subject to Section 12(g), the state and federal courts serving Santa Clara County in the State of California will have exclusive jurisdiction of all disputes and litigation arising out of or related to the Agreement and each Party hereby irrevocably consents and submits to the personal jurisdiction of those courts.  

         (g)     Each Party acknowledges that a breach of confidentiality obligations may cause the aggrieved Party irreparable damage, for which the award of damages may not be adequate compensation. Consequently, the aggrieved Party may immediately institute an action as necessary in any court having competent jurisdiction to seek injunctive relief, without having to post any bond, to enjoin the breaching Party from any and all acts in violation of those provisions, in addition to any other equitable relief to protect the aggrieved Party’s confidentiality and proprietary rights, which such remedies will be cumulative and not exclusive.

         (h)     In any claim, action or proceeding between the Parties arising out of the Agreement or the subject matter hereof, the prevailing Party in the claim, action or proceeding will be entitled to have the other Party pay the prevailing Party’s reasonable attorneys’ fees, costs and other expenses incurred by the prevailing Party in the enforcement or defense of such claim, action or proceeding.

         (i)     Except as expressly set forth otherwise in the Agreement, the exercise by either Party of any remedy under the Agreement will be without prejudice to its other remedies under the Agreement or available otherwise. The provisions of the Agreement shall remain fully valid, effective and enforceable in accordance with their respective terms even under circumstances that cause an exclusive remedy to fail of its essential purpose.

         (j)     The Parties acknowledge and agree that the limitations and exclusions of liability and warranties contained in the Agreement represent the Parties’ agreement based upon the perceived level of risk associated with their respective obligations under the Agreement and the services paid for hereunder, and that such limitations and exclusions will apply even if any limited remedy specified in the Agreement is found to have failed of its essential purpose.

         (k)     Any notice required or permitted to be given under the Agreement shall be sent to the address of the other Party as set forth above or to such address as a Party may have designated by written notice, and in case of DSP Concepts to the attention of its Legal Department. The notice will be deemed received (i) upon delivery by hand, (ii) three (3) days after mailing the notice by registered or certified mail with return receipt requested, or (iii) by the date the notice was delivered via overnight courier service requiring signature upon receipt. Either Party may change its address for notice, which change will be effective upon receipt as set forth herein.

         (l)     If any provision of the Agreement is or becomes illegal, unenforceable or invalidated, by any court of competent jurisdiction, operation of law or otherwise, that provision will be omitted to such extent and the remainder of the Agreement will remain in full force and effect. The waiver by a Party of any provision of the Agreement or breach thereof shall not operate or be construed as a waiver of any other provision or a subsequent breach of the same or a different kind.

         (m)   Captions and headings contained in the Agreement have been included for ease of reference and convenience and shall not be considered in interpreting or construing the Agreement.

         (n)     The Agreement constitutes the complete and exclusive statement of the agreement between the Parties relating to the Licensed Technologies and supersedes all prior or contemporaneous oral and written communications, agreements, representations, warranties, statements, understandings or other negotiations or communications between the Parties. The Agreement may be modified only by a written instrument signed by an authorized representative of each Party. Any additional, inconsistent or conflicting terms and conditions contained in any purchase order, quote form or the like issued by Client shall be of no force or effect, regardless of any statement in a purchase order, quote or the like to the contrary and even if the purchase order, quote form or the like is signed or accepted by DSP Concepts.